dissenting. I am of the opinion that the throwing of a lighted cigarette out of a moving automobile into the windstream is simple negligence as a matter of law and any injury or damage causally traceable to that negligence is recoverable in an action at law. Liability in this case is dependent on simple negligence.
The evidence here is conclusive on the throwing of the lighted cigarette into the windstream from a moving car and that the returning of the cigarette onto the driver of the vehicle caused the accident. The court properly granted summary judgments on the issue of liability. The summary judgment statute specifically authorizes this to be done. CPA § 56 (c) (Code Ann. § 81A-156 (c)). Innumerable decisions of this court and the Supreme Court, none of which have been overruled, recognize that where negligence is clear and palpable it may be held so as a matter of law. This is the situation in this case. A holding to this effect is, I think, within the ambit of the statement in Garrett v. Royal Bros. Co., 225 Ga. 533 (170 SE2d 294), as it is specifically authorized by statute — the summary judgment statute. The correctness of these views is suggested in Buckhead Glass Co. v. Taylor, 226 Ga. 247 (174 SE2d 568), written by Chief Justice Almand and cited by apellant.
This case does not involve gross negligence as did Smith v. Glenn, 115 Ga. App. 527 (154 SE2d 777).
I would affirm.
I am authorized to state that Judges Deen, Whitman and Evans concur in this dissent.